Delhi District Court
State vs . 1. Bijender Singh on 27 April, 2015
1
FIR No. 126/12
PS - Aman Vihar
IN THE COURT OF SH. MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE : SPECIAL FAST TRACK
COURT : NORTHWEST DISTRICT : ROHINI : DELHI
SESSIONS CASE NO. : 102/13
Unique ID No. : 02404R0287042012
State Vs. 1. Bijender Singh
S/o Sh. Amar Singh
R/o House No. 101,
Village - Nithari,
Delhi.
2. Rafiq Ahmed
S/o Basir Ahmed
R/o G - 12, G - Block,
Inder Enclave, Kirari,
Suleman Nagar, Delhi.
FIR No. : 126/12
Police Station : Aman Vihar
Under Section : 376/34 IPC
Date of committal to session Court : 24/11/2012
Date on which judgment reserved : 18/04/2015
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FIR No. 126/12
PS - Aman Vihar
Date on which judgment announced : 27/04/2015
J U D G M E N T
1. Briefly stated the case of the prosecution as unfolded by the report under section 173 Cr.P.C. is as under : That on 13/05/2012 at 11:48 p.m. on receipt of a PCR call regarding the committal of rape with the wife of the caller, in the PS Aman Vihar, DD No. 47A was recorded which was handed over to ASI Nand Kishore. W/SI Anita Sharma was also informed, who on receipt of information reached at PS Aman Vihar. ASI Nand Kishore in the presence of W/Constable Neelam produced the prosecutrix (name withheld being a case u/s 376 IPC) W/o Mohd. Shahid R/o H. No. G42, Inder Enclave, Phase II, Mubarak Pur, Delhi. Medical examination of the prosecutrix was got conducted vide MLC No. 6930/12 and on the MLC the Doctor has endorsed, "Alleged H/o sexual assault" as told by patient herself, old hymen torned, nature of injury O/R. Prosecutrix made the statement which is to the effect, that she alongwith her husband and four children lived at the above address and is the permanent resident 2 of 52 3 FIR No. 126/12 PS - Aman Vihar of Village Sabanhi Jagdish, Post Bathua Bajar, PS Gopal Pur, District Gopal Ganj, Bihar. Her husband in the year 2007, had purchased the abovesaid house from Bijender Singh Property Dealer. Office of Bijender Singh is opposite to her house only. Her husband works in Gurgaon and now and then (Kabhi Kabhi) comes to Delhi. On 09/05/2012 at about 7:30 p.m. Rafiq, servant of Bijender Singh came to her house and told her, "Bhabhi Bijender Singh ji is calling her", on which she told that she is coming and she following him (Rafiq) went to the Office of Bijender Singh and by standing at the door started asking, why she has been called, during this then, Rafiq pushed her inside the Office, Bijender Singh after holding her laid her on the takhat and Rafiq after closing the door went away and Bijender Singh forcibly committed "galat kaam" with her without her consent and against her will. Thereafter, he (Bijender Singh) fled from there then she telephoned the Police and at that time her husband was not at home and as she was frightened for this reason at that time she had not told about the committal of the "Galat Kaam" to the Police. Yesterday, on 13/05/2012, in the evening her husband came to the house, after having food, in the late night she disclosed to her husband about the committal of the 3 of 52 4 FIR No. 126/12 PS - Aman Vihar "Galat Kaam" upon her by Bijender Singh by calling her in his Office, then in the night her husband telephoned the Police at Number 100. Due to being late in the night she did not go with the Police in the Police Station. Now (14/05/2012) she alongwith her husband has come to the Police Station and got recorded her statement, which she has heard and is correct. On the basis of the statement, from the inspection of the MLC finding that an offence u/s 356/34 IPC appeared to have been committed the case was got registered and the investigation was proceeded with W/ASI Anita Sharma. During the course of investigation at the instance of the prosecutrix the site plan of the place of the incident was prepared. The sealed exhibits were taken to the Police Station and were deposited in the Malkhana. Statements of the witnesses were recorded. Accused Bijender Singh on 29/05/2012 and accused Rafiq Ahmad on 04/06/2012 were admitted to anticipatory bail by the Learned Sessions Court. On 30/05/2012 accused Bijender Singh was formally arrested, his medical examination was got conducted, his sealed exhibits were obtained and were deposited in the Malkhana. On 07/06/2012 accused Rafiq Ahmad was formally arrested. The sealed exhibits of the prosecutrix and accused Bijender Singh were sent to the FSL.
4 of 52 5 FIR No. 126/12 PS - Aman Vihar Upon completion of necessary further investigation challan for the offence under section 376/34 IPC was prepared against accused Bijender Singh and Rafiq Ahmad and was sent to the Court for trial.
2. Since the offence under section 376/34 IPC is exclusively triable by the Court of Session therefore, after compliance of the provisions of section 207 Cr.P.C. the case was committed to the Court of Session under section 209 Cr.P.C.
3. Upon committal of the case to the Court of session and after hearing on charge, prima facie a case under section 376(2)(g) IPC was made out against the accused Bijender Singh and Rafiq Ahmad. The charge was framed accordingly, which was read over and explained to the accused to which they pleaded not guilty and claimed trial.
4. In support of its case prosecution has in fact produced and examined 20 witnesses. Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi has been examined as PW8 as well as PW11. PW1 - HC Surender Singh, PW2 - HC Ajit Singh, PW3 5 of 52 6 FIR No. 126/12 PS - Aman Vihar
- Dr. Bina, CMO, Sanjay Gandhi Memorial Hospital, PW4 - Prosecutrix (name withheld), PW5 - Constable Haider Mehdi, PW6 - Constable Neelam, PW7 - Dr. P. C. Prabhakar, Senior Medical Officer, SGM Hospital, Mangol Puri, Delhi, PW8 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi, PW9 - HC Munde Gyanoba, PW10 - HC Purshottam, PW11 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi, PW12 - Constable Sanjeev Kumar, PW13 - Constable Pradeep Kumar, PW14 - ASI Nand Kishore, PW15 - SI Ravinder Solanki, PW16 - Constable Charan Singh, PW17 - Ms. Seema Nain, Senior Scientific Officer, Biology, FSL, Rohini, Delhi, PW18 - SI Suman, PW19 - Shahid and PW20 - SI Anita Sharma.
5. In brief the witnessography of the prosecution witnesses is as under : PW1 - HC Surender Singh, who deposed that on 14/05/2012, he was posted as MHC(M) in PS Aman Vihar. On that day, SI Anit (Anita) Sharma deposited one sealed pullinda alongwith sample seal in the Malkhana. He made entry at Serial No. 1468 in Register No. 6 of 52 7 FIR No. 126/12 PS - Aman Vihar
19. On 30/05/2012, SI Anit (Anita) Sharma deposited three sealed pullindas alongwith sample seal in the Malkhana. He made entry at Serial No. 1481 in Register No. 19. On 29/05/2012, on the instructions of IO, one sealed pullindas alongwith sample seal were handed over to Constable Charan Singh for depositing in the FSL, Rohini vide RC No. 95/21/12. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him. On 08/06/2012, on the instructions of IO, one sealed pullinda alongwith sample seal were handed over to Constable Sanjeev for depositing in the FSL, Rohini vide RC No. 106/21/12. After depositing the same in FSL, he had deposited the acknowledgment receipt of the pullinda with him. He has brought the Register No. 19 and 21. The copy of the relevant entries (colly.) of Register No. 19 is Ex. PW1/A. The copy of relevant entries (colly.) of Register No. 21 is Ex. PW1/B. Copy of the acknowledgment receipts are (colly.) Ex. PW1/C (OSR). Sealed pullindas remained intact during his custody.
PW2 - HC Ajit Singh, who deposed that on 14/05/2012, he was posted as Duty Officer in PS Aman Vihar and was on duty from 7 of 52 8 FIR No. 126/12 PS - Aman Vihar 8:00 a.m. to 4:00 p.m. On that day, at about 12:30 p.m. W/SI Anita has produced one rukka on the basis of which and on his instruction present FIR No. 126/12 u/s 376/34 IPC was registered. After registration of FIR, he handed over the copy of FIR and original rukka to Constable Deepak for handing over to SI Anita for further investigation. He has brought the original FIR Register. The copy of FIR is Ex. PW2/A, bearing his signature at point 'A' (OSR). He made endorsement on the rukka which is Ex. PW2/B. PW3 - Dr. Bina, CMO, Sanjay Gandhi Memorial Hospital, who deposed that on 14/05/2012, prosecutrix (name withheld) W/o Md. Shahid, age 28 years, female was brought to hospitality (Hospital) for medical examination with alleged history of sexual assault as told by patient herself as on 09/05/2012. Local examination there was old heald (healed) abbraisal (abrasion) over the left forearm. Thereafter, the patient was referred to SR (gynae) for further examined. She prepared the MLC and the same is Ex. PW3/A bearing her signatures at point 'A'. On 30/05/2012, one Bijender S/o Amar Singh, age 43 years, male was brought to Hospital for medical examination. After examination, it was 8 of 52 9 FIR No. 126/12 PS - Aman Vihar opined that there is nothing to suggest that the patient is not capable of performing the act of sexual intercourse. She prepared the MLC and the same is Ex. PW3/B bearing her signatures at 'A'.
PW4 - Prosecutrix is the victim who deposed some facts regarding the incident but did not support the prosecution and was also crossexamined by the Learned Addl. PP for State.
PW5 - Constable Haider Mehdi, who deposed that on 27/05/2012, he was posted at PS Aman Vihar and was present in the investigation in this case with IO namely W/SI Anita Sharma. He alongwith IO had gone to the house of the complainant/prosecutrix (name withheld). Complainant was joined (in the) investigation alongwith her husband namely Shahid. IO prepared the site plan with the assistance of complainant. He recorded the statement of complainant, (and) her husband. Thereafter, IO went to the house of accused Bijender i.e. House No. 101, Village Nithari alongwith him and complainant, but his house was found locked. IO inquired about accused in the neighbourhood but no clue could be found regarding him. IO 9 of 52 10 FIR No. 126/12 PS - Aman Vihar recorded his statement.
PW6 - Constable Neelam, who deposed that on 14/05/2012, she was posted as Constable in PS Aman Vihar. On the same day, on the instructions of IO, she had gone to SGM Hospital alongwith complainant/prosecutrix (name withheld) for her medical examination. She was medically examined in the Hospital by the Doctor at about 10:15 a.m. After her medical examination, Doctor handed over the MLC which is already Ex. PW3/A, sealed envelope with the seal of SGM Hospital, GNCT Delhi and sample seal. She returned to the Police Station alongwith prosecutrix (name withheld) and handed over the MLC, sealed envelope and sample seal to the IO. IO took the same into the Police possession vide seizure memo Ex. PW6/A, bearing her signature at point 'A'. Custody of the prosecutrix was handed over to the IO. Thereafter, she, IO and complainant went to G Block, Bijender Chaudhary Property, near Kela Devi Mandir, Inder Enclave II, Delhi, but that premises was found locked. IO recorded her statement.
PW7 - Dr. P. C. Prabhakar, Senior Medical Officer, SGM 10 of 52 11 FIR No. 126/12 PS - Aman Vihar Hospital, Mangol Puri, Delhi, who deposed that on 10/05/2011 at about 1:45 a.m., one injured namely prosecutrix (name withheld) W/o Md. Shahid, female 28 years was brought by IO SI Ravinder, escorted by Lady Constable Sanju with alleged H/o physical assault for medical examination. He was Incharge of the Casualty. Under his supervision Dr. Devender, J.R. had examined the lady. Dr. Devender has left the service of the Hospital and his present whereabouts are not available with them, being the senior colleague of Dr. Devender, he is acquainted with his handwriting and signature. Dr. Devender had examined prosecutrix (name withheld) and on local examination found abrasion over left forearm and further Dr. Devender had referred for gynae opinion. MLC was prepared which is in the handwriting and signature of Dr. Devender which he identify and same is Ex. PW7/A, bears the signature of Dr. Devender at point 'A'.
PW8 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi, who deposed that on 10/05/2012, one patient/prosecutrix (name withheld) W/o Md. Shahid, Age 28 years, female was brought to Hospital for medical examination with the alleged 11 of 52 12 FIR No. 126/12 PS - Aman Vihar H/o physical assault. The patient was initially examined by CMO on duty and thereafter patient was referred to S.R. Obs. & Gynae whereupon the patient was examined by her. The patient refused to get herself internally medically examined. On examination vital were stable. There was abrasion on extensor surface on left forearm. Her examination on the MLC Ex. PW7/A is at point 'X' to 'X', bearing her signature at point 'A'.
PW9 - HC Munde Gyanoba, who deposed that he has brought the DD register pertaining to DD No. 57A. On 09/05/2012, he was working as DD writer at PS Aman Vihar. On that day, he received a Wireless Operator's message at about 9:38 p.m. and they stated that they have received a call No. 8745925377 that a person namely Bijender was doing some forced act for the last four years and was mentally torturing her. On the basis of which he recorded DD No. 57A and the copy of the same is Ex. PW9/A (OSR). The copy of the DD entry was handed over to Constable Hans Raj for handing over the same to SI Ravinder Singh for investigation of the present case. He has also recorded DD No. 6A i.e. the arrival entry of SI Ravinder Singh at about 12 of 52 13 FIR No. 126/12 PS - Aman Vihar 3:00 a.m. on 10/05/2012. The copy of the same is Ex. PW9/B (O.S.R). On 13/05/2012, he was working as Duty Officer and at about 11:48 p.m., he received a telephonic message from Wireless Operators that they have received a call from No. 8745935377 that her (his) wife has been raped in his house at G42, Indira Enclave. The same was handed over to ASI Nand Kishore for further investigation. The copy of the same is Ex. PW9/C (O.S.R).
PW10 - HC Purshottam, who deposed that on 30/05/2012, he was posted as Head Constable at PS Aman Vihar. On that day, as per the direction of SI Anita Sharma, he got medically examined accused Bijender from SGM Hospital and after medical examination the concerned Doctor handed over three sealed pullindas and a sample seal sealed with the seal of 'GB' and the same was handed over to IO after returning to PS who seized the same vide memo Ex. PW10/A bearing his signature at Point 'A'. So long as pullindas remained in his custody the same were not tampered with.
PW11 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM 13 of 52 14 FIR No. 126/12 PS - Aman Vihar Hospital, Mangol Puri, Delhi, who deposed that, she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Anjana, who has since left the Hospital and her present whereabouts are not known. On 14/05/2012, one patient/prosecutrix (name withheld) W/o Mohd. Shaid, Age 28 Years, Female was brought to Hospital for medical examination. After initial examination the patient was referred to Obs. & Gynae where the patient was examined by Dr. Anjana. As per MLC there is alleged history of sexual assault by Property Dealer Virendra at 7:30 p.m. on 09/05/2012. Patient (P4 L4 A2 Married) had already taken bath after that she gave history of physical assault in the form of bruise on her left forearm and swelling on neck. LMP = history of abortion one month back. On examination her vitals were stable. She had marks of external injury i.e. bruise on her left forearm and swelling on neck. On local examination, P/V old hymnal tags were present, vaginal opening admitted one finger. Urine Pregnancy Test was done and was found negative. Relevant samples were taken and were sealed and handed over to the concerned Police official. She is acquainted with the handwriting and signatures of Dr. Anjana and she has seen her while writing and signing during her official duties. The examination of Dr. 14 of 52 15 FIR No. 126/12 PS - Aman Vihar Anjana is at Point 'X to X' on the MLC and the same is Ex. PW11/A bearing her signature at Point 'A'.
PW12 - Constable Sanjeev Kumar, who deposed that on 08/06/2012, he was posted as Constable in PS Aman Vihar. On that day, on the instructions of IO, he took sealed pullinda from the IO for depositing the same in FSL, Rohini. Thereafter, he deposited the pullindas in the FSL and deposited the acknowledgment receipt with the MHC(M). The sealed pullinda remained intact during his custody.
PW13 - Constable Pradeep Kumar, who deposed that on 14/05/2012, he was posted as Computer Operator in PS Aman Vihar. On that day, Duty Officer handed over to him a rukka and on the basis of which and on the instructions of Duty Officer he had typed the present FIR No. 126/12, u/s 376/34 IPC and thereafter, he handed over copies of FIR and original rukka to Duty Officer. He has been issued certificate u/s 65B of The Indian Evidence Act which is Ex. PW13/A bearing his signature at Point 'A'.
15 of 52 16 FIR No. 126/12 PS - Aman Vihar PW14 - ASI Nand Kishore is the initial Investigating Officer (IO) of the case, who deposed that on 13/05/2012, he was posted as ASI at PS Aman Vihar. On that day, at about 11:48 p.m., he received DD No. 47A in which it was informed by a person that someone committed rape with his wife. He went to the spot i.e. a house situated in Inder Enclave where one lady met him. That lady informed him that one person namely Bijender committed rape with her in his Office situated in front of her house at Inder Enclave. The lady didn't open the gate of her house despite of his request and she informed the abovesaid fact while remaining inside the house and she further told him that she would make statement after arrival of her husband. On the next day, prosecutrix came to PS and he called ASI (be read as 'SI') Anita Sharma for further inquiry on the abovesaid DD entry. During the leading questions put by the Learned Addl. PP for the State, PW14 - ASI Nand Kishore has deposed that : "Q. Whether the name of complainant/prosecutrix was Ms. Shahjaha?
Ans. It is correct. The name of prosecutrix is Ms. Shahjaha."
16 of 52 17 FIR No. 126/12 PS - Aman Vihar PW15 - SI Ravinder Solanki, who deposed that on 09/05/2012, he was posted as SI at PS Aman Vihar. On that day, he was on night emergency duty from 8:00 p.m. to 8:00 a.m. (of 10/05/2012). At about 9:38 p.m. a PCR call was received which was recorded as DD No. 57A. He alongwith Constable Hasraj (Hans Raj) reached to the spot i.e H. No. G 42, Inder Enclave, Aman Vihar, Delhi. There one lady namely prosecutrix (name withheld) met him. She informed that one Bijender (who was known to her since last four years) and his servant Rafiq done 'batmiji' with her. He called a L/Constable Sanju and he sent the prosecutrix with L/Constable Sanju to SGM Hospital for her medical examination. Thereafter, he came to PS. At about 2:30 a.m. L/Constable Sanju alongwith prosecutrix came to PS. L/Constable Sanju informed him that prosecutrix had refused for her internal examination. She also handed over the MLC of prosecutrix to him. He asked the prosecutrix to give statement. She had stated that Bijender had done 'batmiji' with her in the presence of his servant Rafiq Ahmed and in anger she make (made) PCR call. She further stated that Bijender had tendered his apology so she didn't want any further legal action. He recorded her statement which is Ex. PW15/A bearing his 17 of 52 18 FIR No. 126/12 PS - Aman Vihar signature at Point 'A'. He filed DD No. 57A vide DD No. 6A dated 10/05/2012 which is already Ex. PW9/B as complainant didn't want any legal action against the offenders.
PW16 - Constable Charan Singh, who deposed that on 29/05/2012, he was posted as Constable at PS Aman Vihar. On that day, on the instructions of IO SI Anita Sharma he obtained one sealed parcel sealed with the seal of 'SGM Hospital' alongwith sample seal from MHC(M) and took the same to FSL Rohini vide RC. After depositing the exhibit at FSL, he returned to PS and handed over the receipt/acknowledgment to MHC(M). During the period the exhibits remained in his custody same were not tampered with.
PW17 - Ms. Seema Nain, Senior Scientific Officer, Biology, FSL, Rohini, Delhi, who proved the biological report Ex. PW17/A signed by her at point 'A'.
PW18 - SI Suman, is also the Investigating Officer (IO) of the case, who deposed that on 17/08/2012, she was posted as SI at PS -
18 of 52 19 FIR No. 126/12 PS - Aman Vihar Aman Vihar. On that day, the present case file was handed over to her for further investigation as the previous IO SI Anita Sharma had proceeded on long leave. She perused the case file and found the investigation has already been completed by previous IO SI Anita Sharma. She prepared the chargesheet and the same has been filed in the Court.
PW19 - Shahid is the husband of the prosecutrix, who deposed that prosecutrix (name withheld) is his wife. Previously, he alongwith his family used to reside at H. No. G 42, Indira Enclave, Phase II, Mubarkpur and he shifted to Nangloi prior to two years from today (10/12/2014, the day of recording of his examinationinchief). He had resided in Mubarkpur for about 6½ years. He had purchased H. No. G 42, Indira Enclave, Phase II, Mubarkpur, Delhi, from Kishan, the Property Dealer. Bijender is the brother of Kishan. He knows accused Bijender. Accused Bijender is present in the Court (correctly identified). More than two years have been elapsed from the date of incident. He can not tell the exact, date, month and year of the incident as he narrated. He went to attend his duty in Gurgaon and stayed there for about 1½ month.
19 of 52 20 FIR No. 126/12 PS - Aman Vihar He returned to his house at 42 (G42), Indira Enclave, Phase II, Mubarkpur, Delhi on 13th. His wife/prosecutrix (name withheld) informed him that a quarrel took place between her with accused Bijender and his employee Rafiq. He knows Rafiq. He is present in the Court (correctly identified). She informed him that their children were playing in the street and ball went inside the Office of Bijender and due to this reason quarrel took place. He made call to Police to know about the case (Maine Yeha Janane Kai Liye Phone Kiya Ki Kis Chiz Ka Case Banaya Hai). However, nothing was informed by the Police about the nature of case. He was called at PS. Police obtained his signatures on several papers. He does not know about the nature and contents of that (those) documents as he is illiterate. Thereafter, I was sent from PS. He resiled from his previous statement and was also crossexamined by the Learned Addl. PP for the State.
PW20 - SI Anita Sharma is the subsequent Investigating Officer (IO) of the case, who deposed that on 14/05/2012, she was posted at PS - Sultan Puri. On that day, at about 9:00/9:15 a.m., ACP concerned informed that there was a call and he directed her to reach at 20 of 52 21 FIR No. 126/12 PS - Aman Vihar PS Aman Vihar. She immediately reached at PS Aman Vihar where ASI Nand Kishore and L/Constable Neelam produced prosecutrix (name withheld). After inquiry from prosecutrix (name withheld), she alongwith Constable Neelam and with prosecutrix (name withheld) went to SGM Hospital for medical examination of prosecutrix (name withheld). After the medical examination of prosecutrix (name withheld), Constable Neelam handed over her the exhibits i.e. a yellow coloured envelope sealed with the seal of 'GNCT DELHI' containing the nail cutting, nail scrabbing, pubic hair, vaginal swab, verbal swab and blood of prosecutrix and she also handed over the sample seal. She took in possession the same vide seizure memo already Ex. PW6/A bearing her signature at Point 'B'. She recorded the statement of prosecutrix (name withheld) which is Ex. PW20/A bearing the signature of prosecutrix (name withheld) at Point 'A' and that of mine at point 'B'. She prepared rukka Ex. PW20/B which bears her signature at Point 'A' and got registered the FIR. Thereafter, she alongwith prosecutrix (name withheld) and Constable Neelam reached at the place of incident i.e G Block, Vijender Property Near Kela Devi Mandir, Inder Enclave II, but the same was found locked. She inquired from neighbourhood but no 21 of 52 22 FIR No. 126/12 PS - Aman Vihar one informed about the same. Thereafter, they came back to PS. She recorded the supplementary statement of prosecutrix (name withheld) and statement of Constable Neelam. Thereafter, prosecutrix went to her home. On 27/05/2012, she alongwith Constable Haidar Mehandi went to the house of prosecutrix where prosecutrix (name withheld) and her husband Sahid met her. She joined them in the investigation and she alongwith them again went to the place of incident and at the instance of complainant/prosecutrix (name withheld) she prepared site plan Ex. PW20/C bearing her signature at Point 'A'. Prosecutrix (name withheld) told her that accused Bijender reside at H. No. 101, Village Nithari, Delhi. She alongwith them went to H. No. 101, Village Nithari, but the same was found locked. She came back to the PS and recorded supplementary statement of prosecutrix (name withheld) and she also recorded the statement of Constable Haidar Mehandi and Sahid (husband of prosecutrix (name withheld) which is Ex. PW20/D bearing her signature at Point 'A'. On 29/05/2012 accused Bijender got anticipatory bail from the Court. On the same day, she sent the exhibits of the prosecutrix to FSL Rohini through Constable Charan Singh. On 30/05/2012 accused Bijender present in the Court (correctly identified) 22 of 52 23 FIR No. 126/12 PS - Aman Vihar was formally arrested vide arrest memo Ex. PW20/E bearing her signature at Point 'A' and released on bail and he was sent for medical examination with HC Purshottam to SGM Hospital. After the medical examination of accused Bijender HC Purshottam came back to PS and handed over her three pullindas sealed with the seal of 'SGM Hospital' and one sample seal of SGM Hospital. She took in possession the same vide seizure memo already Ex. PW10/A bearing her signature at point 'B'. On 04/06/2012 coaccused Rafiq got the anticipatory bail. On 08/06/2012 she sent the exhibits of accused Bijender to FSL Rohini through Constable Sanjeev. On 06/07/2012 accused Rafiq Ahmed present in the Court (correctly identified) was formally arrested vide arrest memo Ex. PW20/F bearing her signature at Point 'A' and he was released on Police bail. Thereafter, she handed over the case file to the MHC(R) PS Aman Vihar as she had to attend a training programme at Rajender Nagar.
The testimonies of the prosecution witnesses shall be dealt with in detail during the course of appreciation of evidence.
23 of 52 24 FIR No. 126/12 PS - Aman Vihar
6. Statements of accused Bijender Singh and Rafiq Ahmed were recorded u/s 313 Cr.P.C. wherein they pleaded innocence and false implication. Accused Bijender Singh and Rafiq Ahmed did not opt to lead any defence evidence.
7. Learned Counsel for the accused submitted that prosecutrix has not supported the prosecution and the prosecution has failed the prove its case beyond reasonable doubts and prayed for the acquittal of the accused on the charge levelled against them.
8. While the Learned Addl. PP for the State, on the other hand, submitted that the testimonies of the prosecution witnesses are cogent and consistent and the contradictions and discrepancies as pointed out are minor and not the material one's and do not affect the credibility of the witnesses and the prosecution has proved its case beyond reasonable doubt.
9. I have heard Ms. Nimmi Sisodia, Learned Addl. PP for the State and Sh. Pradeep Singh, Learned Counsel for the accused and have 24 of 52 25 FIR No. 126/12 PS - Aman Vihar also carefully perused the entire record.
10. The charge for the offences punishable u/s 376(2)(g) IPC against the accused Bijender Singh and Rafiq Ahmed is that on 09/05/2012, at about 7:30 p.m. at G - Block, Bijender Chaudhary Property, near Kela Devi Mandir, Inder Enclave - II, Delhi, within the jurisdiction of PS - Aman Vihar, they both in furtherance of their common intention committed rape upon prosecutrix (name withheld) W/o Md. Shahid, aged around 28 years.
11. It is to be mentioned that as a matter of prudence, in order to avoid any little alteration in the spirit and essence of the depositions of the material witnesses, during the process of appreciation of evidence at some places their part of depositions have been reproduced, in the interest of justice.
AGE OF THE PROSECUTRIX
12. PW4 - prosecutrix in her statement recorded in the Court on 16/08/2013 while giving her particulars has stated her age as 30 years.
25 of 52 26 FIR No. 126/12 PS - Aman Vihar Since PW4 - prosecutrix has stated her age as 30 years on 16/08/2013 at the time of recording her evidence/statement in the Court and the date of alleged incident is 09/05/2012, on simple arithmetical calculation, the age of the prosecutrix comes to 28 years, 08 months and 23 days as on the date of alleged incident on 09/05/2012.
Moreover, the said factum of age of PW4 - prosecutrix has also not been disputed by any of the accused namely Bijender Singh and Rafiq Ahmed. Nor any evidence to the contrary has been produced or proved on the record on behalf of the accused.
In the circumstances, it stands proved on record that PW4 - prosecutrix was aged 28 years, 08 months and 23 days as on the date of incident on 09/05/2012.
MEDICAL EVIDENCE OF THE PROSECUTRIX
13. PW3 - Dr. Bina, CMO, Sanjay Gandhi Memorial Hospital has deposed that on 14/05/2012, prosecutrix (name withheld) W/o Md.
26 of 52 27 FIR No. 126/12 PS - Aman Vihar Shahid, age 28 years, female was brought to hospitality (Hospital) for medical examination with alleged history of sexual assault as told by patient herself as on 09/05/2012. Local examination there was old heald (healed) abbraisal (abrasion) over the left forearm. Thereafter, the patient was referred to SR (gynae) for further examined. She prepared the MLC and the same is Ex. PW3/A bearing her signatures at point 'A'.
PW7 - Dr. P. C. Prabhakar, Senior Medical Officer, SGM Hospital, Mangol Puri, Delhi, has deposed that on 10/05/2011 at about 1:45 a.m., one injured namely prosecutrix (name withheld) W/o Md. Shahid, female 28 years was brought by IO SI Ravinder, escorted by Lady Constable Sanju with alleged H/o physical assault for medical examination. He was Incharge of the Casualty. Under his supervision Dr. Devender, J.R. had examined the lady. Dr. Devender has left the service of the Hospital and his present whereabouts are not available with them, being the senior colleague of Dr. Devender, he is acquainted with his handwriting and signature. Dr. Devender had examined prosecutrix (name withheld) and on local examination found abrasion over left forearm and further Dr. Devender had referred for gynae opinion. MLC was prepared which is in the handwriting and signature 27 of 52 28 FIR No. 126/12 PS - Aman Vihar of Dr. Devender which he identify and same is Ex. PW7/A, bears the signature of Dr. Devender at point 'A'.
PW8 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi, has deposed that on 10/05/2012, one patient/prosecutrix (name withheld) W/o Md. Shahid, Age 28 years, female was brought to Hospital for medical examination with the alleged H/o physical assault. The patient was initially examined by CMO on duty and thereafter patient was referred to S.R. Obs. & Gynae whereupon the patient was examined by her. The patient refused to get herself internally medically examined. On examination vital were stable. There was abrasion on extensor surface on left forearm. Her examination on the MLC Ex. PW7/A is at point 'X' to 'X', bearing her signature at point 'A'.
PW11 - Dr. Supriya Parashar, S. R. (Obs. & Gynae), SGM Hospital, Mangol Puri, Delhi, has deposed that she has been deputed in this case by the MS of the Hospital to depose on behalf of Dr. Anjana, who has since left the Hospital and her present whereabouts are not known. On 14/05/2012, one patient/prosecutrix (name withheld) W/o Mohd. Shaid, Age 28 Years, Female was brought to Hospital for 28 of 52 29 FIR No. 126/12 PS - Aman Vihar medical examination. After initial examination the patient was referred to Obs. & Gynae where the patient was examined by Dr. Anjana. As per MLC there is alleged history of sexual assault by Property Dealer Virendra at 7:30 p.m. on 09/05/2012. Patient (P4 L4 A2 Married) had already taken bath after that she gave history of physical assault in the form of bruise on her left forearm and swelling on neck. LMP = history of abortion one month back. On examination her vitals were stable. She had marks of external injury i.e. bruise on her left forearm and swelling on neck. On local examination, P/V old hymnal tags were present, vaginal opening admitted one finger. Urine Pregnancy Test was done and was found negative. Relevant samples were taken and were sealed and handed over to the concerned Police official. She is acquainted with the handwriting and signatures of Dr. Anjana and she has seen her while writing and signing during her official duties. The examination of Dr. Anjana is at Point 'X to X' on the MLC and the same is Ex. PW11/A bearing her signature at Point 'A'.
Despite grant of opportunity, PW3 - Dr. Bina, PW7 - Dr. P. C. Prabhakar, PW8 - Dr. Supriya Parashar and PW11 - Dr. Supriya Parashar (on behalf of Dr. Anjana) were not crossexamined on behalf 29 of 52 30 FIR No. 126/12 PS - Aman Vihar of the accused.
In view of above and in the circumstances, the medical examination vide MLC Ex. PW3/A dated 14/05/2012, MLC Ex. PW7/A dated 10/05/2012, from point 'X' to 'X' on the MLC Ex. PW7/A dated 10/05/2012 and the gynaecological examination from point 'X' to 'X' Ex. PW11/A on the MLC Ex. PW3/A of PW4 - prosecutrix stands proved on the record.
VIRILITY OF THE ACCUSED BIJENDER SINGH
14. PW3 - Dr. Bina, CMO, Sanjay Gandhi Memorial Hospital has deposed that on 30/05/2012, one Bijender S/o Amar Singh, age 43 years, male was brought to Hospital for medical examination. After examination, it was opined that there is nothing to suggest that the patient is not capable of performing the act of sexual intercourse. She prepared the MLC and the same is Ex. PW3/B bearing her signatures at 'A'.
Despite grant of opportunity, PW3 - Dr. Bina was not cross examined on behalf of the accused.
30 of 52 31 FIR No. 126/12 PS - Aman Vihar In view of above and in the circumstances, it stands proved on the record that accused Bijender was capable of performing the act of sexual intercourse.
BIOLOGICAL EVIDENCE
15. PW17 - Ms. Seema Nain, Senior Scientific Officer, Biology, FSL, Rohini, Delhi, has proved the biological report Ex. PW17/A respectively signed by her at point 'A'.
As per biological report Ex. PW17/A the description of articles contained in parcel and result of analysis reads as under : DESCRIPTION OF ARTICLES CONTAINED IN PARCEL Parcel '1' : One sealed paper envelope sealed with the seal of "SGMH GNCT DELHI" containing exhibits '1a', '1b', '1c', '1d', '1e', '1f', '1g', '1h', '1i', '1j', '1k', '1l', '1m' & '1n' stated to be of prosecutrix.
Exhibit '1a' : Few dirty nail clippings kept in paper described as "Right hand nail clippings".
Exhibit '1b' : Few dirty nail clippings kept in paper described as 31 of 52 32 FIR No. 126/12 PS - Aman Vihar "Left hand nail clippings".
Exhibit '1c' : One cotton wool swab on stick kept in tube described as "Right nail scrapping".
Exhibit '1d' : One cotton wool swab on stick kept in tube described as "Left nail scrapping".
Exhibit '1e' : One cotton wool swab on plastic stick kept in tube described as "Right vulvul swab".
Exhibit '1f' : One cotton wool swab on stick kept in tube described as "Left vulvul swab".
Exhibit '1g' : One cotton wool swab on stick, kept in tube described as "Right lateral vaginal Swab".
Exhibit '1h' : One cotton wool swab on stick, kept in tube described as "Left lateral vaginal Swab".
Exhibit '1i' : One cotton wool swab on stick, kept in tube described as "Anterior vaginal Swab".
Exhibit '1j' : One cotton wool swab on stick, kept in tube described as "Posterior vaginal Swab".
Exhibit '1k' : A few black strands of hair kept in paper described as "Clipping of pubic hair".
Exhibit '1l' : A few black strands of hair kept in paper described as "Combing of pubic hair".
Exhibit '1m' : Blood sample of victim, Returned in original.
& '1n' Parcel '2' : One sealed cloth parcel sealed with the seal of "SGMH MANGOLPURI DELHI" containing exhibit '2' stated to be of accused.
32 of 52
33
FIR No. 126/12
PS - Aman Vihar
Exhibit '2' : Returned in original.
RESULT OF BIOLOGICAL EXAMINATION
1. Blood could not be detected on exhibits '1a', '1b', '1c' & '1d'.
2. Semen could not be detected on exhibits '1e', '1f', '1g', '1h', '1i', '1j', '1k' & '1l'. therefore, DNA examination of these exhibits could not be performed.
NOTE :
1. Parcel No. '2', returned in original seal as Blood and Semen could not be detected on the exhibits of victim.
2. Remnants of the exhibits have been sealed with the seal of 'S.Nn.FSL DELHI'.
As per the biological report Ex. PW17/A, with regard to the description of the articles contained in the parcels, it is noticed that Parcel No. 1 belongs to the prosecutrix which was seized vide seizure memo Ex. PW6/A, dated 14/05/2012 and Parcel No. 2 belongs to the accused Bijender Singh which was seized vide seizure memo Ex. PW10/A, dated 30/05/2012.
33 of 52 34 FIR No. 126/12 PS - Aman Vihar On careful perusal and analysis of the biological and serological evidence on record, it clearly shows that blood could not be detected on exhibit '1a' (Right hand nail clippings of the prosecutrix), exhibit '1b' (Left hand nail clippings of the prosecutrix), exhibit '1c' (Right nail scrapping of the prosecutrix) & exhibit '1d' (Left nail scrapping of the prosecutrix) and semen could not be detected on exhibit '1e' (Right vulvul swab of the prosecutrix), exhibit '1f' (Left vulvul swab of the prosecutrix), exhibit '1g' (Right lateral vaginal Swab of the prosecutrix), exhibit '1h' (Left lateral vaginal Swab of the prosecutrix), exhibit '1i' (Anterior vaginal Swab of the prosecutrix), exhibit '1j' (Posterior vaginal Swab of the prosecutrix), exhibit '1k' (Clipping of pubic hair of the prosecutrix) & exhibit '1l' (Combing of pubic hair of the prosecutrix).
16. Now let the testimony of PW4 - Prosecutrix be perused and analysed.
PW4 Prosecutrix, in her examinationinchief has deposed which is reproduced and reads as under : 34 of 52 35 FIR No. 126/12 PS - Aman Vihar "On 09/05/2012 at about 8:00/8:30 p.m., a quarrel had taken place between me and Rafiq who is the servant of Bijender. I am not aware about the work done by Bijender. In that quarrel altercation took place between me and Rafiq and after some time Rafiq call Bijender by telephoning him. Bijender case (came) there who instead of making understand Rafiq but snubbed me (Bijender Ne Rafiq Ko Nahi Smjhaya Aur Mujhe Hi Dant Diya). Due to this I made a call to the Police at number 100. Police reached there. I was called to the Police Station and I went there. Police informed me for getting my medical examination conducted but I told to the Police when nothing wrong has been done with me, I will not get conduct my medical examination. I was taken to the Sanjay Gandhi Hospital by the Police where also I refused to the Doctor for my medical examination as nothing wrong was done with me. From there from the Hospital I returned to my home.
At this stage, Ld. Addl. PP for State requested to put a clarificatory question to the witness on the aspect regarding her refusal regarding medical examination.
Heard and perused. Permission granted.
Q. What wrong was not done with you, regarding which you have deposed herein above?
Ans. I mean that in the quarrel Bijender had snubbed me (Dante The) and nothing else had happened (Aisa Kuch Nahi Hua Tha).
On 14/05/2012 my husband came at home as he was staying at Gurgaon and I narrated the whole incident to him. On hearing the same my husband made a call in the night of 14/05/2012 in the Police Station. Thereafter, I alongwith my husband went to the Police Station. There at the Police Station my husband told to the Police that my medical examination will be done. Thereafter, one lady Police took me to the 35 of 52 36 FIR No. 126/12 PS - Aman Vihar Sanjay Gandhi Hospital for medical examination and there my medical examination was conducted. After my medical examination, I came back to my home. My statement was recorded by the Police. Q. Please see a document/statement, does it bear your signature? Ans. Yes it bears my signature at point 'A'.
Q. Is it the same statement which was given by you to the Police and bears your signature at point 'A'?
Ans. I am illiterate (Mai Pahri Nahi Hu). For the purpose of reference the said statement is marked as Mark PX."
From the aforesaid narration of PW4 - prosecutrix, it is clear that on 09/05/2012 at about 8:00/8:30 p.m., a quarrel had taken place between her and Rafiq who is the servant of Bijender. She is not aware about the work done by Bijender. In that quarrel altercation took place between her and Rafiq and after some time Rafiq call Bijender by telephoning him. Bijender came there who instead of making understand Rafiq but snubbed her (Bijender Ne Rafiq Ko Nahi Smjhaya Aur Mujhe Hi Dant Diya). Due to this she made a call to the Police at number 100. Police reached there. She was called to the Police Station and she went there. Police informed her for getting her medical examination conducted but she told to the Police when nothing wrong has been done with her, she will not get conduct her medical examination. She was 36 of 52 37 FIR No. 126/12 PS - Aman Vihar taken to the Sanjay Gandhi Hospital by the Police where also she refused to the Doctor for her medical examination as nothing wrong was done with her. From there from the Hospital she returned to her home. She means that in the quarrel Bijender had snubbed her (Dante The) and nothing else had happened (Aisa Kuch Nahi Hua Tha). On 14/05/2012 her husband came at home as he was staying at Gurgaon and she narrated the whole incident to him. On hearing the same her husband made a call in the night of 14/05/2012 in the Police Station. Thereafter, she alongwith her husband went to the Police Station. There at the Police Station her husband told to the Police that her medical examination will be done. Thereafter, one lady Police took her to the Sanjay Gandhi Hospital for medical examination and there her medical examination was conducted. After her medical examination, she came back to her home. Her statement was recorded by the Police and it bears her signature at point 'A'. She is illiterate and can not identify the statement which was given by her to the Police and bears her signature at point 'A'. For the purpose of reference the said statement is marked as Mark PX.
37 of 52 38 FIR No. 126/12 PS - Aman Vihar PW4 - Prosecutrix was also crossexamined by the Learned Addl. PP for the State as she was resiling from her previous statement which is reproduced and reads as under : "At the time of incident I alongwith my family was residing at G 42, Inder Enclave, Phase II, Mubarak Pur. My husband was residing at Gurgaon at that time and he was doing the work of paint in the houses. My husband used to visit at my house at Delhi after the gap of about 7/10 days. The above said house is owned by us. We had purchased this house in the year 2007. The said house was purchased by us through Kishan, the brother of Bijender, who was working as a Property Dealer. I am not aware that Bijender is also doing Property Dealer work. There is an Office of Property Dealer opposite to my said house but I am not aware to whom it belongs whether to Kishan or Bijender. Rafiq was doing work in the said Office of Property Dealer. I have given my Nangloi address in my particulars recorded above as I have sold my house at G 42, Inder Enclave, Phase II, Mubarak Pur. I have sold my Inder Enclave house about one year back of the incident in question. The house at Inder Enclave was of 50 sq. yds. (Pachas Gaj Ka). My present Nangloi house is of 25 sq. yds. (Pachis Gaj Ka). The house at Inder Enclave was sold by us as there was water problem. The house at Inder Enclave was sold by us for an amount of Rs. 13 lacs. My present house at Nangloi was purchased by us for an amount of Rs. 13 lacs.
I had made the call to the Police at number 100 on 09/05/2012 through my mobile phone number. I do not remember my mobile number today. That mobile phone has since been lost. My mobile phone number is different than what was earlier through which I 38 of 52 39 FIR No. 126/12 PS - Aman Vihar made the call to the Police at number 100 on 09/05/2012. I cannot admit or deny the suggestion that the mobile phone number was 8745925377 through which I made call to the Police at number 100 on 09/05/2012. Q. When you made the call at number 100 on 09/05/2012 to the Police, what was told by you to the Police in the said call? Ans. I had told to the Police that a quarrel had taken place with Rafiq and Hatha Pai has been done.
It is wrong to suggest that on the call made at number 100 on 09/05/2012 to the Police I had told to the Police that a person by the name Vijender Jha of the Office at House No. 42, Inder Enclave, Mubark (Mubarak) Pur, Aman Vihar forces upon (Jabardasti Karta Hai) for the last four years and is creating mental tension (Dimagi Pareshan Kar Raha Hai). (Confronted with DD No. 57A dated 09/05/2012 Mark PX1 where it is so recorded).
On 10/05/2012 both Rafiq and Bijender had apologized before the Respectable of the locality (Samaj Ke Samne)."
PW4 - prosecutrix during her further crossexamination dated 17/10/2014 by the Learned Addl. PP for the State has deposed that : "I know accused Bijender as the house was purchased from the brother of accused Bijender. I know accused Rafiq as he was living in my neighbourhood. It is wrong to suggest that I had purchased the house from Bijender and not from the brother of accused Bijender. Q. I put it to you that accused Rafiq used to work in the Office of 39 of 52 40 FIR No. 126/12 PS - Aman Vihar accused Bijender?
Ans. It was the Office of Kishan not of accused Bijender where accused Rafiq used to do the work of serving tea and water (Chai Pani Pilanai Ka Kaam Karta Tha).
I am not aware as to what work accused Bijender was doing at that time. It is wrong to suggest that I am deposing falsely that, 'I am not aware as to what work accused Bijender was doing at that time' or that it was the Office of accused Bijender and he used to do the property dealing work. Accused Rafiq did not come to my house on 09/05/2012 telling me that accused Bijender is calling me. It is wrong to suggest that accused Rafiq came to my house on 09/05/2012 telling me that accused Bijender is calling me. It is wrong to suggest that I had gone to the Office of Bijender and when at the door of the house I was asking for Bijender then accused Rafiq had pushed me inside the Office (Andar Ki Taraf Office Mae Dhaka De Diya Tha). It is wrong to suggest that accused Bijender had committed rape upon me in his Office. It is wrong to suggest that I had told to my husband on 13/05/2012 that accused Bijender had committed rape upon me in his Office. Vol. my quarrel had taken place with accused Rafiq (Mera Jhagra Rafiq Kae Saath Hoowa Tha). I had made the call to the Police at No. 100 on 09/05/2012, the first date when quarrel had taken place with Rafiq. It is wrong to suggest that in the call made to the Police at no. 100 on 09/05/2012 I had informed the Police that one person in the Office by the name of Bijender Jha had been committing rape upon me for the last four years and had been mentally harassing me. My husband had made the call to the Police at No. 100 on 13/05/2012. It is wrong to suggest that my husband informed the Police while he made the call to the Police at No. 100 on 13/05/2012 that on 09/05/2012 accused Bijender Jha had 40 of 52 41 FIR No. 126/12 PS - Aman Vihar committed rape with me.
Q. Did you tell the Police that on 10/05/2012 both the accused Bijender and Rafiq had apologized to you (Mujhsae Mafi Mangi Thee) for the misbehaviour which they had done to you? Ans. I had told the Police that Rafiq had apologized to me (Mujhsae Mafi Mangi Thee) for his misbehaviour which he had done to me. Vol. Rafiq had apologized to me for the quarrel which he had done with me (Jhagrae Kae Liye Mafi Mangi Thee).
It is wrong to suggest that on 10/05/2012 I told Police that both the accused Bijender and Rafiq had tendered their apology to me for their misbehaviour (Badtamiji) which was done with me on 09/05/2012. As I recollect I had gone to the Police Station with my husband on 14/05/2012. No statement was given to Police by me on 14/05/2012. The statement Mark PX is bearing my signature at Point 'A'. The statement Mark PX was not read over to me by the Police before I signed the same.
Q. Didn't you tell the police on what paper you are being made to sign?
Ans. I was asked by the Police to sign the paper (Madam Yaha Par Sign Kar Do) and at the asking of the Police I signed the paper.
It is wrong to suggest that I made statement Mark PX to Police or that same was read over to me by the Police or that after admitting the same to be correct I signed the statement Mark PX. I did not make any complaint against the Police regarding asking me to sign the paper. Vol. I am illiterate and I have read only Arabi.
At this stage the statement Mark PX is read over to the witness who denies of having made any such statement to the Police.
41 of 52 42 FIR No. 126/12 PS - Aman Vihar After about a week I came to know about a rape case against accused Bijender Jha and Rafiq of my visiting the Police Station. I did not go to the Police Station to enquire as to how a rape case against accused Bijender Jha and Rafiq was instituted though I had not made any such complaint against them. It is wrong to suggest that I did not go to the Police Station to enquire as to how a rape case against accused Bijender Jha and Rafiq was instituted as I had made my such complaint against them. I did not tell to the Doctor regarding the rape committed by accused Bijender Jha on 09/05/2012 at the time of my medical examination. It is wrong to suggest that I had told to the Doctor regarding the rape committed by accused Bijender Jha on 09/05/2012 at the time of my medical examination. I had not shown to the Police the place of occurrence. No site plan was prepared by the Police at my instance. It is wrong to suggest that I had also shown the place of occurrence to the Police or that the Police prepared the site plan at my instance.
At this stage, statement dated 14/05/2012 is shown and read over to the witness, who denies of having made any such statement. Vol. my thumb impression at Point 'A' and signature at Point 'B' were obtained on the blank paper. The said statement is Mark PW4/PA.
It is wrong to suggest that I am deliberately concealing the true and actual facts in order to save the accused. It is wrong to suggest that I have compromised the matter with the accused. It is wrong to suggest that I have been won over by the accused and for this reason I have made the statement favouring them. It is wrong to suggest that I am deposing falsely."
PW4 - Prosecutrix was not crossexamined on behalf of 42 of 52 43 FIR No. 126/12 PS - Aman Vihar accused despite grant of opportunity given.
On analysing the entire testimony of PW4 - prosecutrix it is clearly indicated that she has specifically deposed that Police informed her for getting her medical examination conducted but she told to the Police that when nothing wrong has been done with her, she will not get conduct her medical examination as nothing wrong was done with her. When a clarificatory question was put to her regarding her refusal for her medical examination, that, "What wrong was done with you, regarding which you have deposed hereinabove?", she replied and deposed that, "I mean that in the quarrel Bijender had snubbed me (Dante The) and nothing else had happened (Aisa Kuch Nahi Hua Tha)." During her crossexamination by Learned Addl. PP for the State she negated the suggestions put to her by the Learned Addl. PP for the State that on the call made at number 100 on 09/05/2012 to the Police she had told to the Police that a person by the name Vijender Jha of the Office at House No. 42, Inder Enclave, Mubark (Mubarak) Pur, Aman Vihar forces upon (Jabardasti Karta Hai) for the last four years and is creating mental tension (Dimagi Pareshan Kar Raha Hai) or that she had purchased the 43 of 52 44 FIR No. 126/12 PS - Aman Vihar house from Bijender and not from the brother of accused Bijender or that she is deposing falsely that, 'I am not aware as to what work accused Bijender was doing at that time' or that it was the Office of accused Bijender and he used to do the property dealing work or that accused Rafiq came to her house on 09/05/2012 telling her that accused Bijender is calling her or that she had gone to the Office of Bijender and when at the door of the house she was asking for Bijender then accused Rafiq had pushed her inside the Office (Andar Ki Taraf Office Mae Dhaka De Diya Tha) or that accused Bijender had committed rape upon her in his Office or that she had told to her husband on 13/05/2012 that accused Bijender had committed rape upon her in his Office. Vol. my quarrel had taken place with accused Rafiq (Mera Jhagra Rafiq Kae Saath Hoowa Tha) or that in the call made to the Police at No. 100 on 09/05/2012 she had informed the Police that one person in the Office by the name of Bijender Jha had been committing rape upon her for the last four years and had been mentally harassing her or that her husband informed the Police while he made the call to the Police at No. 100 on 13/05/2012 that on 09/05/2012 accused Bijender Jha had committed rape with her or that on 10/05/2012 she told Police that both the accused Bijender and Rafiq 44 of 52 45 FIR No. 126/12 PS - Aman Vihar had tendered their apology to her for their misbehaviour (Badtamiji) which was done with her on 09/05/2012 or that she made statement Mark PX to Police or that same was read over to her by the Police or that after admitting the same to be correct she signed the statement Mark PX or that she did not go to the Police Station to enquire as to how a rape case against accused Bijender Jha and Rafiq was instituted as she had made her such complaint against them or that she had told to the Doctor regarding the rape committed by accused Bijender Jha on 09/05/2012 at the time of her medical examination or that she had also shown the place of occurrence to the Police or that the Police prepared the site plan at her instance or that she is deliberately concealing the true and actual facts in order to save the accused or that she has compromised the matter with the accused or that she has been won over by the accused and for this reason she has made the statement favouring them or that she is deposing falsely.
As discussed hereinbefore, PW4 - prosecutrix has been found to be aged around 29 years, from the testimony of PW4 - prosecutrix, nothing is being indicated that on 09/05/2012, at about 7:30 p.m. at G - Block, Bijender Chaudhary Property, near Kela 45 of 52 46 FIR No. 126/12 PS - Aman Vihar Devi Mandir, Inder Enclave - II, Delhi, accused Bijender Singh and Rafiq Ahmed, in furtherance of their common intention, committed rape upon PW4 prosecutrix. Even the FSL Report Ex. PW17/A as reproduced, discussed and analysed hereinbefore also does not come to the rescue of the prosecution case.
Now, let the testimony of PW19 - Shahid, husband of the prosecutrix be perused and analysed.
PW19 - Shahid, in his examinationinchief has deposed that prosecutrix (name withheld) is his wife. Previously, he alongwith his family used to reside at H. No. G 42, Indira Enclave, Phase II, Mubarkpur and he shifted to Nangloi prior to two years from today (10/12/2014, the day of recording of his examinationinchief). He had resided in Mubarkpur for about 6½ years. He had purchased H. No. G 42, Indira Enclave, Phase II, Mubarkpur, Delhi, from Kishan, the Property Dealer. Bijender is the brother of Kishan. He knows accused Bijender. Accused Bijender is present in the Court (correctly identified). More than two years have been elapsed from the date of incident. He can not tell the exact, date, month and year of the incident as he narrated. He 46 of 52 47 FIR No. 126/12 PS - Aman Vihar went to attend his duty in Gurgaon and stayed there for about 1½ month. He returned to his house at 42 (G42), Indira Enclave, Phase II, Mubarkpur, Delhi on 13th. His wife/prosecutrix (name withheld) informed him that a quarrel took place between her with accused Bijender and his employee Rafiq. He knows Rafiq. He is present in the Court (correctly identified). She informed him that their children were playing in the street and ball went inside the Office of Bijender and due to this reason quarrel took place. He made call to Police to know about the case (Maine Yeha Janane Kai Liye Phone Kiya Ki Kis Chiz Ka Case Banaya Hai). However, nothing was informed by the Police about the nature of case. He was called at PS. Police obtained his signatures on several papers. He does not know about the nature and contents of that (those) documents as he is illiterate. Thereafter, he was sent from PS. PW19 - Shahid was also crossexamined by the Learned Addl. PP for the State as he was resiling from his previous statement which is reproduced and reads as under : "The talks relating to purchase of H. No. G 42, Indira Enclave, Phase II, Mubarkpur, Delhi, took place with accused Bijender and his brother Kishan. It is wrong to suggest that the talks relating to 47 of 52 48 FIR No. 126/12 PS - Aman Vihar purchase of H. No. G 42, Indira Enclave, Phase II, Mubarkpur, Delhi, took place only with accused Bijender and not with his brother Kishan. It is wrong to suggest that when I returned to my house on 13/05/2012 my wife Shahjaha informed me that on 09/05/2012 at about 7:30 p.m. accused Rafiq came to our house and called her on the pretext that accused Bijender was calling her. It is wrong to suggest that my wife further informed me that when she alongwith accused Rafiq reached outside the office of accused Bijender, accused Rafiq pushed her inside the office and then went away after closing the door of the office of accused Bijender. It is wrong to suggest that my wife had also informed me that accused Bijender pushed her on the wooden bed (takhat) and committed 'galat kaam' with her. It is wrong to suggest that on 13/05/2012 I made PCR call and informed police about the committal of rape with my wife. Vol. I made call for making inquiry from the police about the nature of the case (kis baat ka) already registered by them. It is wrong to suggest that on 14/05/2012 I alongwith my wife went to PS Aman Vihar and informed the police about the committal of rape by accused Bijender upon my wife and also about the conduct of accused Rafiq.
At this stage, the statement Mark PW19/PX is read over to the witness, who denies of having made such statement to the Police.
It is wrong to suggest that I am deliberately concealing the true and actual facts in order to save the accused persons. It is wrong to suggest that the matter has been compromised with the accused persons and for this reason I am deposing in favour of the accused. It is wrong to suggest that I am deposing falsely."
PW19 - Shahid was not crossexamined on behalf of 48 of 52 49 FIR No. 126/12 PS - Aman Vihar accused despite grant of opportunity.
On careful perusal and analysis of the testimony of PW19 - Shahid, husband of the prosecutrix, it is found that nothing material has come out in her testimony so as to advance the case of the prosecution on the core spectrum of the crime. He negated the suggestions, as were put to her by the Learned Addl. PP, that the talks relating to purchase of H. No. G 42, Indira Enclave, Phase II, Mubarkpur, Delhi, took place only with accused Bijender and not with his brother Kishan or that when he returned to his house on 13/05/2012 his wife/prosecutrix (name withheld) informed him that on 09/05/2012 at about 7:30 p.m. accused Rafiq came to their house and called her on the pretext that accused Bijender was calling her or that his wife further informed him that when she alongwith accused Rafiq reached outside the Office of accused Bijender, accused Rafiq pushed her inside the Office and then went away after closing the door of the Office of accused Bijender or that his wife had also informed him that accused Bijender pushed her on the wooden bed (takhat) and committed 'galat kaam' with her or that on 13/05/2012 he made PCR call and informed Police about the committal of rape with his wife. Vol. I 49 of 52 50 FIR No. 126/12 PS - Aman Vihar made call for making inquiry from the police about the nature of the case (kis baat ka) already registered by them or that on 14/05/2012 he alongwith his wife went to PS Aman Vihar and informed the Police about the committal of rape by accused Bijender upon his wife and also about the conduct of accused Rafiq or that he is deliberately concealing the true and actual facts in order to save the accused persons or that the matter has been compromised with the accused persons and for this reason he is deposing in favour of the accused or that he is deposing falsely.
17. In view of above and in the circumstances, I find that the prosecution has failed to prove its case beyond reasonable doubt against accused Bijender Singh and Rafiq Ahmed. The hostility of PW4 - prosecutrix and that of PW19 - Shahid, her husband has knocked out the bottom of the case of the prosecution. There is nothing on record to indicate that on 09/05/2012, at about 7:30 p.m. at G - Block, Bijender Chaudhary Property, near Kela Devi Mandir, Inder Enclave - II, Delhi, accused Bijender Singh and Rafiq Ahmed, in furtherance of their common intention, committed rape upon PW4 - prosecutrix.
50 of 52 51 FIR No. 126/12 PS - Aman Vihar I accordingly acquit accused Bijender Singh and Rafiq Ahmed for the offence punishable u/s 376 (2)(g) IPC.
18. In view of above discussion, I am of the considered opinion that as far as the involvement of accused Bijender Singh and Rafiq Ahmed in the commission of offence punishable u/s 376 (2)(g) IPC, is concerned, the same is not sufficiently established by the cogent and reliable evidence and in the ultimate analysis, the prosecution has failed to bring the guilt home to the accused Bijender Singh and Rafiq Ahmed beyond shadows of all reasonable doubts and there is a room for hypothesis, consistent with that of innocence of accused Bijender Singh and Rafiq Ahmed. I, therefore, acquit accused Bijender Singh and Rafiq Ahmed for the offence punishable u/s 376 (2)(g) IPC after giving them the benefit of doubt. Accused Bijender Singh and Rafiq Ahmed are on bail. However, u/s 437A Cr.P.C. the bail bonds of accused Bijender Singh and Rafiq Ahmed shall remain in force for six months and they to appear before the Hon'ble Higher Court as and when such Court issues Notice in respect of any Petition filed against this judgment.
51 of 52 52 FIR No. 126/12 PS - Aman Vihar Announced in the open Court (MAHESH CHANDER GUPTA) on 27th Day of April, 2015 Additional Sessions Judge Special Fast Track Court (N/W District), Rohini, Delhi 52 of 52